99 more votes can be counted and could make difference in 46th District

By Jimmy Vielkind

Updated 5:57 am, Thursday, January 10, 2013

ALBANY — A state appeals court has ordered election officials to open 99 additional ballots in a close state Senate race, a move that has the potential to erase Republican George Amedore's 37-vote margin of victory.

The five justices of the court were unanimous in an eight-page decision issued Wednesday afternoon.

Duanesburg Democrat Cecilia Tkaczyk brought the case last month, arguing that a Montgomery County judge was wrong in invalidating roughly 450 ballots and certifying Amedore as the winner after a three-week court supervised count.

Fifty-three of those ballots were cast by election workers in Ulster County who filled out and submitted special ballots more than two weeks before Election Day.

The law says election officials may not distribute ballots more than two weeks before the polls open, which Republicans said should invalidate the votes. (They objected to 39 inspectors' ballots, compared with Democrats' 14 objections.) The justices, as they suggested during a Monday hearing, said the law only applied to workers at the Board of Elections and that any voter who submitted a ballot early should be held harmless for a "ministerial error."

The justices also ordered election officials to open several ballots that were invalidated because not enough information was provided on their application envelope, and several others that were thrown out due to objections on the validity of a voter's residency.

It was not immediately clear when the ballots would be opened.

It's also unclear if the ruling will be appealed. Because the decision was unanimous, a "leave" to continue the case before the Court of Appeals must be granted either by the five appellate division justices or the Court of Appeals' seven judges.

The new senators formally convened Wednesday — without Amedore — and on Tuesday senators met privately in party caucuses to discuss new rules for the chamber that will let the GOP share power with the five-member Independent Democratic Conference.

Amedore was to be the 31st Republican elected to the state Senate, but Brooklyn Democrat Simcha Felder has agreed to vote with the GOP, giving it a voting majority in the 63-seat chamber. Amedore did not vote Wednesday, though, citing the ongoing appeal.

His spokesman, Kris Thompson, said the campaign was reviewing the decision. Tkaczyk's campaign was more buoyant in its reaction.

"We are pleased that the judges of the Appellate Division agree with the very basic principle that ministerial errors should not invalidate New Yorkers' rights to have their voices heard," Tkaczyk spokesman Gary Ginsburg said in a statement. "We respect the judicial process and look forward to a speedy resolution to ensure that the residents of the 46th Senate District have their elected representative seated in the state Senate."